Privacy Law and Policy Reporter
The first article in this two part series appeared in the previous issue of PLPR.
Dispute resolution is an important element of some privacy seal programs, and I am taking a closer look at the programs because of the European Union’s acceptance of them as part of the Safe Harbor process. In my last article, I reviewed the TrustE program and found many shortcomings. Now it is the turn of the Council of Better Business Bureau’s program, BBBOnline.
BBBOnline’s dispute resolution service looks better in many respects than TrustE’s comparable service. To begin with, BBB has an independent reputation as an intermediary between consumers and companies. BBBOnline has good reason to stand up to seal holders when necessary to protect its reputation. Independence is something that TrustE has yet to demonstrate.
BBBOnline has formal rules of procedures for filing and resolving disputes. If anything, the rules may be too legalistic and too long (17 pages) but they are certainly better than the hidden procedures used by TrustE. In the interest of full disclosure, you should know that I sat in on some drafting meetings for the BBBOnline rules. My biggest objection then and now is that the rules do not allow for adequate relief. BBB will not award monetary damages, even in those occasional cases where it is appropriate.
This type of reporting is fine. BBBOnline tells the world a lot about its complaint process. We know how many complaints were accepted, how many were rejected, and something about the nature of the complaints.
We do not, however, know nearly enough. There were 16 total complaints received from the program’s inception in March 1999 through the first quarter of 2000. One was resolved by the parties. Three decisions were issued on 28 February 2000. Why are there so many cases pending for so long?
We also do not know enough about the reported decisions. The web page introducing the decisions says when they were issued, but the date is not included in the body of the decision itself. Decisions have sequence numbers, but there is no way to determine when the complaints were received, how long the processing took or which complaints are still pending. Complaints do not have complaint numbers that can be matched to decision numbers. BBBOnline needs a better docket information system.
Decisions from BBBOnline can include a statement from the company that was the subject of the request. That would be okay if the complainant also had a chance to make a statement. Giving a platform to one side and not the other is just plain unfair.
The biggest problem with the reported decisions is with number 2000-003, a dispute involving eBay. The complaint was that eBay sent a promotional email to a registered user who had opted out. The original decision found some facts and ordered some changes.
eBay was not happy with BBBOnline’s actions. It seems that eBay is also a member of TrustE and that this same complaint had been filed earlier with TrustE. eBay apparently liked the TrustE resolution and argued that BBB should not have accepted the complaint. eBay expressly said that it would withdraw from BBBOnline if the matter were not satisfactorily resolved.
The next step was really disturbing — BBBOnline caved. It vacated the original decision and posted a substitute one paragraph decision (with the same number as the vacated decision) saying that everything was resolved and providing no details. The earlier decision is no longer maintained on the website, although I was given a copy when I asked for it directly.
The appearance here is that eBay threatened to drop BBBOnline so BBB gave in to eBay’s demands. Vacating a decision may be appropriate sometimes, but withdrawing it from public view once posted is a terrible precedent. It undermines the integrity of BBB’s reporting system.
The decision points to a second problem. Some websites became members of both BBBOnline and TrustE. These dual memberships raise concerns about forum shopping by both companies and by consumers. In this case, eBay got the decision it wanted from TrustE. We can’t judge whether that result was fair or not because TrustE doesn’t post all of its decisions.
The complainant presumably was not happy because a second complaint was filed with BBBOnline. Is this appropriate? Maybe. eBay chose to join two dispute programs. Perhaps it should have to accept the consequences of joint membership. Or maybe the complainant should not have a second bite at the apple. It’s a debatable point.
The underlying issue is that membership in two overlapping seal programs may be inappropriate. Perhaps companies should not be allowed to join two programs with separate dispute resolution services. As things stand now, joint membership is an invitation to problems. It weakens the credibility and fairness of dispute resolution programs to both sides.
In the end, BBBOnline clearly provides better public accountability for dispute resolution than TrustE. I am tempted to say that the BBBOnline dispute program is better than TrustE’s, but the withdrawal of a published decision was a blunder of major dimension. As things stand right now, I would be hard pressed to recommend either dispute resolution service to an aggrieved web user. Or to the European Union, for that matter. Both programs still have a lot to prove — and a lot to overcome.
Robert Gellman is a Washington-based privacy and information policy consultant and former chief counsel to the House subcommittee on information, justice, transportation and agriculture: <email@example.com>.
This article originally appeared in the 13 October issue of DM News, the journal of the US Direct Marketing Association. It is reproduced by kind permission of the journal and the author.